Pending
before the court is defendant, American Medical Systems,
Inc.'s, (“AMS”) Motion to Dismiss with
Prejudice. [ECF No. 12]. The plaintiff, who is pro se, has
not responded, and the deadline for responding has expired.
Thus, this matter is ripe for my review. For the reasons
stated below, AMS's Motion is DENIED.

I.
Background

This
case resides in one of seven MDLs assigned to me by the
Judicial Panel on Multidistrict Litigation concerning the use
of transvaginal surgical mesh to treat pelvic organ prolapse
and stress urinary incontinence. In the seven MDLs, there are
approximately 50, 000 cases currently pending, approximately
2, 500 of which are in the AMS MDL, MDL 2325. Managing
multidistrict litigation requires the court to streamline
certain litigation procedures in order to improve efficiency
for the parties and the court. Some of these management
techniques simplify the parties' discovery
responsibilities.

Pretrial
Order Number 223 (“PTO # 223”) provides that
plaintiffs in 517 cases in this MDL, including this case,
were required to submit a Plaintiff Fact Sheet
(“PFS”) to act as interrogatory answers under
Federal Rule of Civil Procedure 33 and responses to requests
for production under Federal Rule of Civil Procedure 34.
See PTO # 223 at ¶ B, No. 2:12-md-2325, entered
Oct. 21, 2016 [ECF No. 3216]. Here, the plaintiff failed to
submit a completed PFS and AMS now moves for sanctions
against the plaintiff for failure to comply with PTO # 223.
Specifically, AMS seeks dismissal of the plaintiff's case
with prejudice.

II.
Legal Standard

Federal
Rule of Civil Procedure 37(b)(2) allows a court to sanction a
party for failing to comply with discovery orders.
See Fed. R. Civ. P. 37(b)(2) (stating that a court
“may issue further just orders” when a party
“fails to obey an order to provide or permit
discovery”). Before levying a harsh sanction under Rule
37, such as dismissal or default, a court must first consider
the following four Wilson factors identified by the
Fourth Circuit Court of Appeals:

(1) Whether the noncomplying party acted in bad faith; (2)
the amount of prejudice his noncompliance caused his
adversary, which necessarily includes an inquiry into the
materiality of the evidence he failed to produce; (3) the
need for deterrence of the particular sort of noncompliance;
and (4) the effectiveness of less drastic sanctions.

In
applying these factors to this case, I must be particularly
cognizant of the realities of multidistrict litigation and
the unique problems an MDL judge faces. Specifically, when
handling seven MDLs containing thousands of individual cases,
case management becomes of utmost importance. See In re
Phenylpropanolamine Prods. Liab. Litig., 460 F.3d 1217,
1231 (9th Cir. 2006) (emphasizing the “enormous”
task of an MDL court in “figur[ing] out a way to move
thousands of cases toward resolution on the merits while at
the same time respecting their individuality”). I must
define rules for discovery and then strictly adhere to those
rules, with the purpose of ensuring that pretrial litigation
flows as smoothly and efficiently as possible. See
Id. at 1232 (“[T]he district judge must establish
schedules with firm cutoff dates if the coordinated cases are
to move in a diligent fashion toward resolution by motion,
settlement, or trial.”); see also Fed. R. Civ.
P. 1 (stating that the Federal Rules of Civil Procedure
“should be construed, administered, and employed by the
court and the parties to secure the just, speedy, and
inexpensive determination of every action and
proceeding”). In turn, counsel must collaborate with
the court “in fashioning workable programmatic
procedures” and cooperate with these procedures
thereafter. In re Phenylpropanolamine, 460 F.3d at
1231-32. Pretrial orders-and the parties' compliance with
those orders and the deadlines set forth therein-“are
the engine that drives disposition on the merits.”
Id. at 1232. A “willingness to resort to
sanctions” in the event of noncompliance can ensure
that the engine remains in tune, resulting in better
administration of the vehicle of multidistrict litigation.
Id.; see also Freeman v. Wyeth, 764 F.3d
806, 810 (8th Cir. 2014) (“The MDL judge must be given
‘greater discretion' to create and enforce
deadlines in order to administrate the litigation
effectively. This necessarily includes the power to dismiss
cases where litigants do not follow the court's
orders.”).

III.
Discussion

Pursuant
to PTO # 223, the plaintiff was required to submit a
completed PFS by November 21, 2016. The purpose of the PFS,
as was the case in In re Phenylpropanolamine, is
“to give each defendant the specific information
necessary to defend the case against it . . . [because]
without this device, a defendant [is] unable to mount its
defense because it [has] no information about the plaintiff
or the plaintiff's injuries outside the allegations of
the complaint.” 460 F.3d at 1234. To this end, PTO #
223 provided that “[a]ny plaintiff who fails to comply
with this PTO may be subject to a substantial sanction,
including dismissal with prejudice.” PTO # 223 at
¶ E. As of the date of this Order, the plaintiff has not
submitted a PFS, making it 259 days late.

I am
cognizant of the difficulties presented by the plaintiff not
being represented by counsel at this time. The pro se
litigant, however, is not immune from sanctions for failing
to comply with court orders. “Pro se litigants are
entitled to some deference from courts . . . . But they as
well as other litigants are subject to the time requirements
and respect for court orders without which effective judicial
administration would be impossible.” Ba
lard v. Carlson, 882 F.2d 93, 96 (4th
Cir. 1989) (internal citations omitted).

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;AMS
asks the court to dismiss the plaintiff&#39;s case with
prejudice. The plaintiff did not respond to AMS&#39;s motion
to dismiss. Applying the Wilson factors to these
facts, and bearing in mind the unique context of
multidistrict litigation, I conclude that although recourse
under Rule 37 is justified, the plaintiff should ...

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.